Supreme Court Grants Illegal Immigrants More Opportunities to Avoid Deportation

The Supreme Court has given an illegal immigrant another chance to avoid deportation by ruling that courts can review an immigration judge’s removal decision.

Chief Justice of the Supreme Court John Roberts (L), along with (L–R) Associate Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson (back) stand in the House of Representatives ahead of President Joe Biden's third State of the Union address to a joint session of Congress in the House Chamber of the U.S. Capitol on March 7, 2024. Shawn Thew/Pool/AFP via Getty Images

The U.S. Supreme Court ruled on Tuesday to allow a lower court to review and potentially overturn an immigration judge’s determination to deport an illegal immigrant, with possible implications for the removal of criminal aliens.

In a 6–3 split decision on March 19, the Supreme Court said that the U.S. Court of Appeals for the Third Circuit erred in determining that it lacked jurisdiction to review a discretionary determination by an immigration judge.

The immigration judge had denied an illegal immigrant’s request to avoid deportation and remain in the United States based on one of four statutory criteria for relief from deportation, namely that of an “exceptional and extremely unusual hardship” to the child of the would-be deportee.

In the case, known as Wilkinson v. Garland, a citizen of Trinidad and Tobago by the name of Situ Wilkinson overstayed his tourist visa and has been living in the United States for over a decade without lawful authorization.

Mr. Wilkinson was arrested and detained by U.S. Customs and Immigration Enforcement (ICE), and slated for deportation. However, he applied for relief from deportation, arguing that his 7-year-old son, who has a serious medical condition and depends on him for financial and emotional support, would suffer “exceptional and extremely unusual hardship.”

Congress has granted immigration judges discretionary power to cancel deportation proceedings against an illegal immigrant and permit the noncitizen to remain in the country lawfully.

The immigration judge found that Mr. Wilkinson’s situation did not meet the statutory hardship standard and denied relief, with the Board of Immigration Appeals affirming that denial.

Upon appeal, the Third Circuit Court of Appeals held that it lacked the jurisdiction to review the immigration judge’s discretionary hardship determination.

The case ended up before the Supreme Court, which on March 19 held that the determination was a “mixed question of law and fact” and so is reviewable by a court.

Justices for the majority held the view that the criteria for granting relief from deportation are not merely or overwhelmingly questions of fact (which would make them less reviewable by courts) but also of law.

The case is significant as it opens the door for more judicial review of immigration judges’ deportation decisions and, as the three dissenting justices argued, potentially cause undue delay in removal proceedings for criminal aliens.

‘Questions of Law’

The U.S. Attorney General has been granted discretionary power, under the Immigration and Nationality Act, to cancel the deportation of non-permanent residents who satisfy four eligibility criteria.

One of these criteria is “that removal would result in exceptional and extremely unusual hardship” to the applicant’s immediate family member, such as a spouse or dependent child, who is an American citizen or lawful permanent resident of the United States.

Even though Congress stripped courts of jurisdiction to review cancellation-of-removal determinations, it specifically preserved their jurisdiction to review “questions of law.”

The Supreme Court already held in an earlier case called Guerrero-Lasprilla v. Barr that the statutory phrase “questions of law” includes the application of a given legal standard to “undisputed or established facts,” meaning that they are mixed questions of law and fact.

The specific question that was put before the Supreme Court in Wilkinson v. Garland was whether an agency determination that a set of established facts doesn’t meet the statutory standard for “exceptional and extremely unusual hardship” was a mixed question of law and fact that is reviewable by a court or whether such a determination is a “discretionary judgment call unreviewable under § 1252(a)(2)(B)(i), as the court below and two other circuits have concluded.”

In an opinion on behalf of the majority, Justice Sonia Sotomayor noted that the high court held that “the application of a statutory legal standard (like the exceptional and extremely unusual hardship standard) to an established set of facts is a quintessential mixed question of law and fact” and is therefore “reviewable” by courts.

“In this case, the application of the hardship standard—which requires an IJ [immigration judge] to evaluate a number of factors in determining whether any hardship to a U. S. citizen or permanent-resident family member is substantially different from what would normally be expected in the removal of a close family member—concededly requires a close examination of the facts,” she wrote.

Justice Sotomayor wrote for the majority that the Supreme Court disagreed with the government’s argument that evaluating the statutory criteria for cancellation of an illegal immigrant’s removal proceedings was a “primarily factual mixed question is a question of fact” and that nothing in the law supports the government’s view that “the phrase ‘questions of law’ is so limited.”

‘Defies Common Sense’

Justice Samuel Alito wrote in a dissent that Congress passed laws that sought to control illegal immigration and streamline procedures for removing illegal aliens from the country who had been convicted of criminal offenses.

The dissent, which was joined by Chief Justice John Roberts and Justice Clarence Thomas, argued that an overly broad interpretation of the Guerrero-Lasprilla v. Barr decision means “the phrase ‘questions of law’ has a stunning sweep” and “encompasses all sorts of discretionary rulings that depend almost entirely on the relevant facts.”

Justice Alito, who dissented in Guerrero-Lasprilla v. Barr, wrote that he doubts that Congress intended “questions of law” to “sweep so broadly” and that a maximalist reading is incorrect.

He said he dissented in Guerrero-Lasprilla v. Barr because he feared that the Supreme Court’s “sweeping language” would lead to “absurd” results and would transform a “narrow exception into a broad provision permitting judicial review of all criminal aliens’ challenges to their removal proceedings except the precious few that raise only pure questions of fact.”

Justice Alito said that the law allows for the Supreme Court to exercise “at least a modicum” of common sense when interpreting statutes and the broad language of Guerrero-Lasprilla v. Barr, which was cited by the majority as one of the justifications for the ruling in Wilkinson v. Garland, “defies common sense.”

He and the other dissenting justices argued that when Congress granted courts the jurisdiction to review cancellation-of-removal determinations when “questions of law” arose, they didn’t mean to adopt a “maximalist understanding of ‘questions of law’ that could unreasonably delay the conclusion of removal proceedings for illegal immigrants.